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B-96250, JULY 28, 1950, 30 COMP. GEN. 40

B-96250 Jul 28, 1950
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RETIREMENT - EFFECTIVE DATE - REVIEW OF RELEASE FROM ACTIVE SERVICE FOR PHYSICAL DISABILITY AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE SERVICE. PURSUANT TO THE APPROVED FINDINGS OF AN ARMY RETIRING BOARD THAT HIS PHYSICAL DISABILITY WAS NOT INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE. IS ENTITLED TO BE RETIRED. EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING APPROVAL BY THE PRESIDENT OF THE FINDINGS OF AN ARMY DISABILITY REVIEW BOARD THAT HIS INCAPACITY WAS INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE. AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE SERVICE. IS FOUND ENTITLED TO BE RETIRED. PURSUANT TO AN ARMY DISABILITY REVIEW BOARD'S DECISION THAT HIS INCAPACITY WAS INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE.

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B-96250, JULY 28, 1950, 30 COMP. GEN. 40

RETIRED PAY; RETIREMENT - EFFECTIVE DATE - REVIEW OF RELEASE FROM ACTIVE SERVICE FOR PHYSICAL DISABILITY AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, PURSUANT TO THE APPROVED FINDINGS OF AN ARMY RETIRING BOARD THAT HIS PHYSICAL DISABILITY WAS NOT INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE, AND WHO REQUESTED REVIEW OF SUCH FINDINGS UNDER SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, IS ENTITLED TO BE RETIRED, WITH PAY, EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING APPROVAL BY THE PRESIDENT OF THE FINDINGS OF AN ARMY DISABILITY REVIEW BOARD THAT HIS INCAPACITY WAS INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE. AN OFFICER OF THE ARMY OF THE UNITED STATES WHO WAS RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, BY REASON OF PHYSICAL DISABILITY PRIOR TO THE DATE OF APPROVAL OF THE CAREER COMPENSATION ACT OF 1949 AND WHO, SUBSEQUENT TO THAT DATE, IS FOUND ENTITLED TO BE RETIRED, WITH PAY, PURSUANT TO AN ARMY DISABILITY REVIEW BOARD'S DECISION THAT HIS INCAPACITY WAS INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE, WOULD HAVE NO RIGHT UNDER SECTION 411 OF THE ACT TO ELECT THE METHOD OF COMPUTING HIS RETIRED PAY, THE RIGHT OF SUCH ELECTION THEREUNDER BEING APPLICABLE ONLY TO MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES RETIRED PRIOR TO APPROVAL OF THE ACT. AN OFFICER OF THE ARMY OF THE UNITED STATES RELEASED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY WHO LATER, UPON APPEARING BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS, WAS FOUND TO BE PHYSICALLY DISABLED AS A RESULT OF AN INCIDENT OF THE SERVICE BUT WHO DIED PRIOR TO APPROVAL OF SUCH FINDINGS IS NOT ENTITLED TO ANY RETIREMENT PAY. LEGAL REPRESENTATIVES OF THE ESTATES OF INCOMPETENT OR DECEASED MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY, WITH PAY, OR WHO WERE ENTITLED TO RECEIVE SUCH PAY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, MAY EXERCISE THE RIGHT GRANTED IN SECTION 411 TO SUCH RETIRED MEMBERS TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY THEREUNDER OR TO RECEIVE RETIREMENT PAY COMPUTED UNDER ONE OF THE TWO METHODS IN SECTION 511 OF THE ACT. A FORMER REGULAR ARMY ENLISTED MAN WITH TWENTY YEARS' SERVICE WHO WAS DISCHARGED PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 FOR A DISABILITY INCURRED IN LINE OF DUTY, BUT WHOSE APPLICATION FOR RETIREMENT WITH PAY SUBMITTED UNDER SECTION 2 OF THE ACT OF JUNE 30, 1941, AS AMENDED, WAS NOT APPROVED PRIOR TO THE REPEAL OF THAT ACT, HAD NO RETIREMENT RIGHTS UNDER THE 1941 ACT SAVED TO HIM BY SECTIONS 519 AND 520 OF THE 1949 ACT, SAID SECTIONS BEING APPLICABLE ONLY TO PERSONS WHO, ON THE DATE OF THE ACT, ARE RECEIVING OR ARE ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JULY 28, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 20, 1950, WHEREIN YOU PRESENT FOR DECISION SEVERAL QUESTIONS REGARDING THE RETIRED PAY STATUS OF THE PERSONS REFERRED TO THEREIN.

YOUR FIRST QUESTION RELATES TO DONALD W. BROWN O-405175, FIRST LIEUTENANT, CHAPLAIN, ARMY OF THE UNITED STATES, WHO WAS RELEASED FROM ACTIVE SERVICE WITHOUT PAY, EFFECTIVE JULY 28, 1943, BY REASON OF PHYSICAL DISABILITY, NOT INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE, PURSUANT TO THE APPROVED FINDINGS OF AN ARMY RETIRING BOARD. ON MARCH 24, 1949, LIEUTENANT BROWN FILED APPLICATION FOR A REVIEW OF HIS CASE BY THE ARMY DISABILITY REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED BY SECTION 4 OF THE ACT OF DECEMBER 28, 1945, 59 STAT. 623, 38 U.S.C. 6931, WHICH BOARD FOUND THAT HIS INCAPACITY WAS INCURRED AS THE RESULT OF AN INCIDENT OF THE SERVICE. SUCH FINDINGS WERE APPROVED BY THE PRESIDENT ON DECEMBER 7, 1949.

IN DECISION OF OCTOBER 8, 1947, 27 COMP. GEN. 186, IT WAS HELD, IN EFFECT, THAT OFFICERS GRANTED RETIREMENT PAY UNDER THE CIRCUMSTANCES OUTLINED ABOVE WERE NOT ENTITLED TO SUCH RETIREMENT PAY FOR ANY PERIOD PRIOR TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEIR RETIREMENTS WERE APPROVED BY THE PRESIDENT. HOWEVER, IN THE CASE OF WOMER V. UNITED STATES, 114 C.1CLS. 415, DECIDED JULY 11, 1949, WHICH INVOLVED A SIMILAR SITUATION, IT WAS HELD (QUOTING FROM THE SYLLABUS):

* * * THAT PLAINTIFF WAS ENTITLED TO ACTIVE SERVICE PAY FROM DATE HE WAS PLACED ON RETIRED LIST WITHOUT PAY UNTIL DATE HE WAS PLACED ON RETIRED LIST WITH PAY, BUT SINCE PLAINTIFF WAS HOSPITALIZED BETWEEN THESE DATES AND SINCE PLAINTIFF SUED IN THE ALTERNATIVE, RECOVERY IS LIMITED TO THE AMOUNT OF WHAT WOULD HAVE BEEN HIS RETIREMENT PAY HAD THE RETIREMENT DATE BEEN MADE RETROACTIVE UNDER THE ORDER OF THE RETIREMENT REVIEW BOARD, WHICH WAS APPROVED BY THE PRESIDENT.

IN VIEW OF THE CONCLUSION REACHED BY THE COURT OF CLAIMS IN THE WOMER CASE YOU REQUEST DECISION AS TO THE CORRECT DATE FROM WHICH LIEUTENANT BROWN IS ENTITLED TO RETIREMENT PAY.

SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, SUPRA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY ARE AUTHORIZED AND DIRECTED TO ESTABLISH, FROM TIME TO TIME, BOARDS OF REVIEW COMPOSED OF FIVE COMMISSIONED OFFICERS, TWO OF WHOM SHALL BE SELECTED FROM THE MEDICAL CORPS OF THE ARMY OR NAVY, OR FROM THE PUBLIC HEALTH SERVICE, AS THE CASE MAY BE. IT SHALL BE THE DUTY OF ANY SUCH BOARD TO REVIEW, AT THE REQUEST OF ANY OFFICER RETIRED OR RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY PURSUANT TO THE DECISION OF A RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD, THE FINDINGS AND DECISIONS OF SUCH BOARD. SUCH REVIEW SHALL BE BASED UPON ALL AVAILABLE SERVICE RECORDS RELATING TO THE OFFICER REQUESTING SUCH REVIEW, AND SUCH OTHER EVIDENCE AS MAY BE PRESENTED BY SUCH OFFICER. WITNESSES SHALL BE PERMITTED TO PRESENT TESTIMONY EITHER IN PERSON OR BY AFFIDAVIT, AND THE OFFICER REQUESTING REVIEW SHALL BE ALLOWED TO APPEAR BEFORE SUCH BOARD OF REVIEW IN PERSON OR BY COUNSEL. IN CARRYING OUT ITS DUTIES UNDER THIS SECTION SUCH BOARD OF REVIEW SHALL HAVE THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISION ARE BEING REVIEWED. THE PROCEEDINGS AND DECISION OF EACH SUCH BOARD OF REVIEW AFFIRMING OR REVERSING THE DECISION OF ANY SUCH RETIRING BOARD, BOARD OF MEDICAL SURVEY, OR DISPOSITION BOARD SHALL BE TRANSMITTED TO THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, OR THE SECRETARY OF THE TREASURY, AS THE CASE MAY BE, AND SHALL BE LAID BY HIM BEFORE THE PRESIDENT FOR HIS APPROVAL OR DISAPPROVAL AND ORDERS IN THE CASE.

(B) NO REQUEST FOR REVIEW UNDER THIS SECTION SHALL BE VALID UNLESS FILED WITHIN FIFTEEN YEARS AFTER THE DATE OF RETIREMENT FOR DISABILITY OR AFTER JUNE 22, 1944, WHICHEVER IS THE LATER.

WOMER WAS A LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE, AND IN ITS OPINION IN HIS CASE THE COURT OF CLAIMS REFERRED TO SECTION 1455, REVISED STATUTES, 34 U.S.C. 412, WHICH PROVIDES THAT NO OFFICER OF THE NAVY SHALL BE RETIRED FROM THE ACTIVE SERVICE WITHOUT A FULL AND FAIR HEARING BEFORE A NAVAL RETIRING BOARD, IF HE DEMANDS IT, AND TO SECTION 1453, REVISED STATUTES, 34 U.S.C. 417, WHICH PROVIDES THAT WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, AND SUCH DECISION IS APPROVED BY THE PRESIDENT, THE OFFICER MUST BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY. THE COURT ALSO REFERRED TO SECTION 1454, REVISED STATUTES, 34 U.S.C. 418, WHICH PROVIDES THAT IF THE BOARD FINDS THAT THE DISABILITY IS NOT THE RESULT OF AN INCIDENT OF THE SERVICE, AND SUCH FINDING IS APPROVED BY THE PRESIDENT, THE OFFICER IS RETIRED FROM ACTIVE SERVICE ON FURLOUGH PAY, OR WHOLLY RETIRED FROM ACTIVE SERVICE WITH ONE YEAR'S PAY, AS DETERMINED BY THE PRESIDENT. WITH THOSE PROVISIONS OF LAW IN MIND, THE COURT SAID (BEGINNING AT PAGE 422/---

THUS IT APPEARS THAT IN THE CIRCUMSTANCES OF THIS CASE THE PLAINTIFF COULD NOT BE PUT ON THE INACTIVE LIST EXCEPT BY A FINDING OF THE RETIRING BOARD THAT HE WAS INCAPACITATED AND THAT SUCH INCAPACITY WAS NOT THE RESULT OF AN INCIDENT OF THE SERVICE. THE REVIEWING BOARD HAVING REVERSED THE FINDING OF THE RETIRING BOARD, IT WOULD BE DIFFICULT TO ESCAPE THE CONCLUSION THAT PLAINTIFF REMAINED IN ACTIVE SERVICE AND WAS ENTITLED TO ACTIVE DUTY PAY UNTIL HE WAS RETIRED PURSUANT TO ORDERS ISSUED IN ACCORDANCE WITH THE FINDINGS OF THE REVIEWING BOARD, HAD HE SEEN FIT TO INSIST UPON THIS CONSTRUCTION OF HIS CLAIM.

DETERMINED ON A STRICTLY LEGAL BASIS, WE THINK PLAINTIFF WOULD BE ENTITLED TO ACTIVE SERVICE PAY DURING THE INTERVENING PERIOD, BUT SINCE HE WAS IN NO CONDITION TO RENDER SERVICE DURING THAT PERIOD, AND SINCE HE HAS SUED IN THE ALTERNATIVE AND ASKED FOR JUDGMENT FOR ONE OR THE OTHER OF THE SUMS INDICATED, WE ARE INCLINED TO LIMIT THE RECOVERY TO THE AMOUNT OF WHAT WOULD HAVE BEEN HIS RETIREMENT PAY HAD THE RETIREMENT DATE BEEN MADE RETROACTIVE TO JANUARY 15, 1943. * * *

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

THE CONCLUSION REACHED BY THE COURT OF CLAIMS WITH RESPECT TO THE EFFECT OF SECTIONS 1453, 1454, AND 1455, REVISED STATUTES, APPEARS TO BE DIAMETRICALLY OPPOSED TO THE CONCLUSION REACHED BY THE SUPREME COURT OF THE UNITED STATES, REGARDING THE EFFECT OF SUCH SECTIONS, IN THE CASE OF DENBY V. BERRY, 263 U.S. 29.

BY ORDERS OF SECRETARY OF THE NAVY DENBY, BERRY, AN OFFICER IN THE NAVAL RESERVE FORCE, WAS RELEASED FROM ACTIVE DUTY AFTER A NAVAL BOARD OF MEDICAL SURVEY HAD FOUND HIM TO BE UNDER PERMANENT DISABILITY INCURRED IN LINE OF DUTY AND RECOMMENDED THAT HE BE SENT BEFORE A RETIRING BOARD. THAT CONNECTION SECTION 1455, REVISED STATUTES, REFERRED TO ABOVE, WHICH HAD BEEN MADE APPLICABLE TO OFFICERS ON ACTIVE SERVICE IN THE NAVAL RESERVE FORCE, WHEN DISABLED IN LINE OF DUTY, BY A PROVISO IN THE ACT OF JULY 1, 1918, 40 STAT. 704, 710, AND, LATER, BY A PROVISION IN THE ACT OF JUNE 4, 1920, 41 STAT. 834, PROVIDED AS FOLLOWS:

NO OFFICER OF THE NAVY SHALL BE RETIRED FROM ACTIVE SERVICE, OR WHOLLY RETIRED FROM THE SERVICE, WITHOUT A FULL AND FAIR HEARING BEFORE SUCH NAVY RETIRING BOARD, IF HE SHALL DEMAND IT, EXCEPT IN CASES WHERE HE MAY BE RETIRED BY THE PRESIDENT AT HIS OWN REQUEST, OR ON ACCOUNT OF AGE OR LENGTH OF SERVICE, OR ON ACCOUNT OF HIS FAILURE TO BE RECOMMENDED BY AN EXAMINING BOARD FOR PROMOTION.

IN VIEW OF SUCH PROVISION OF LAW, BERRY FILED A PETITION FOR MANDAMUS IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA TO COMPEL THE SECRETARY OF THE NAVY TO REVOKE THE ORDER DIRECTING HIS RELEASE FROM ACTIVE DUTY AND TO MAKE AN ORDER SENDING HIM BEFORE A RETIREMENT BOARD, WITH A VIEW TO HIS RETIREMENT BY THE PRESIDENT. THE SAID COURT ISSUED THE MANDAMUS AS PRAYED AND THE COURT OF APPEALS OF THE DISTRICT AFFIRMED THAT PART OF THE MANDAMUS WHICH DIRECTED REVOCATION OF THE ORDER FOR BERRY'S RELEASE FROM ACTIVE DUTY. THE SECRETARY THEN BROUGHT A WRIT OF ERROR TO THE JUDGMENT OF THE COURT OF APPEALS.

IN REVERSING THE SAID JUDGMENT, THE SUPREME COURT, SPEAKING THROUGH MR. CHIEF JUSTICE TAFT, SAID (PAGE 33, ET SEQ./---

IT IS QUITE EVIDENT FROM THE FOREGOING THAT MEMBERS OF THIS FORCE, ( NAVAL RESERVE FORCE) OCCUPIED TWO STATUSES, ONE THAT OF INACTIVE DUTY, AND THE OTHER OF ACTIVE SERVICE. IT IS FURTHER CLEAR THAT IT WAS WITHIN THE POWER OF THE PRESIDENT, AND OF THE SECRETARY OF THE NAVY ACTING FOR HIM, TO CHANGE THE MEMBERS OF RESERVE FORCE FROM ONE STATUS TO THE OTHER. THE POWER TO CALL THEM FROM INACTIVE DUTY TO ACTUAL SERVICE WAS EXPRESS. THE POWER TO ORDER THEM FROM ACTUAL SERVICE TO INACTIVE DUTY WAS NECESSARILY IMPLIED. * * *ORDERS RELEASING INDIVIDUALS FROM ACTIVE SERVICE AND PUTTING THEM ON INACTIVE DUTY WERE CLEARLY WITHIN THE POWER OF THE PRESIDENT AND OF THE SECRETARY OF THE NAVY ACTING FOR HIM IN THE ADMINISTRATION OF THE ACT. NOWHERE IS THERE FOUND ANY LIMITATION UPON THE DISCRETION OF THE EXECUTIVE IN THIS REGARD. * * *

TO BE RETIRED FROM ACTIVE SERVICE UNDER THE SECTIONS FROM 1448 TO 1455, REVISED STATS., INCLUSIVE, MEANS RETIRED WITH PAY AND HAS HAD THIS MEANING FOR MANY YEARS. BROWN V. UNITED STATES, 113 U.S. 568, 572. TO BE WHOLLY RETIRED MEANS TO BE REMOVED FROM THE SERVICE ENTIRELY ON PAYMENT OF A LUMP SUM AND TO BECOME A CIVILIAN. MILLER V. UNITED STATES, 19 CT. CLMS. 338, 353; 29 OPS.ATTY.GEN. 401. * * * IT IS VERY CLEAR, THEREFORE, THAT A MERE CHANGE OF STATUS FROM ACTIVE SERVICE TO INACTIVE DUTY IN THE NAVAL RESERVE FORCE IS NOT A "RETIREMENT" IN THE MEANING OF SEC. 1455, REV. STATS., THE ACT OF JULY 1, 1918, OR THAT OF JUNE 4, 1920.

BUT IT IS SAID THAT THE SECRETARY DIRECTED THE RELEASE OF THE RELATOR FROM ACTIVE SERVICE AND REFUSED HIM A RETIRING BOARD BECAUSE HE WAS OF THE OPINION THAT UNDER THE ACT OF JULY 1, 1918, AND BEFORE THE ACT OF JUNE 4, 1920, RESERVE FORCE OFFICERS WERE NOT ENTITLED TO BE RETIRED ON PAY, BUT THAT THEY MUST APPLY FOR THE RELIEF EXTENDED TO PERSONS DISABLED IN THE SERVICE BY SECS. 300 AND 302 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, C. 105, 40 STAT.398, 405, 406. BECAUSE THE SECRETARY GAVE A WRONG REASON FOR HIS ACTION IS NOT A GROUND FOR REQUIRING HIM BY MANDAMUS TO REVOKE THE ORDER PUTTING THE RELATOR ON INACTIVE DUTY, IF HE HAD DISCRETION TO DO THIS, AS WE HAVE FOUND HE DID HAVE.

THE LAWS RELATING TO THE NAVAL RESERVE, INSOFAR AS HERE PERTINENT, WERE NOT MATERIALLY CHANGED BETWEEN THE DATE OF THE UNITED STATES SUPREME COURT'S DECISION IN THE BERRY CASE ( NOVEMBER 12, 1923), AND THE DATE OF THE DECISION OF THE COURT OF CLAIMS IN THE WOMER CASE AND, HENCE, THE SUPREME COURT'S DECISION IN THE BERRY CASE WAS PERTINENT TO THE DETERMINATION OF WOMER'S RIGHTS. HOWEVER, FROM THE RECORD BEFORE THIS OFFICE IT DOES NOT APPEAR THAT THE BERRY CASE WAS BROUGHT TO THE ATTENTION OF, OR CONSIDERED BY, THE COURT OF CLAIMS IN ITS DELIBERATIONS ON THE WOMER CASE. IN ANY EVENT, THIS OFFICE IS BOUND TO TAKE COGNIZANCE OF WHAT WAS SAID BY THE SUPREME COURT IN THE BERRY CASE (14 COMP. GEN. 648, 652) AND SINCE, AS INDICATED ABOVE, THE REASONING USED BY THE COURT OF CLAIMS IN REACHING ITS CONCLUSION IN THE WOMER CASE IS IN DIRECT CONFLICT WITH WHAT WAS SAID BY THE SUPREME COURT IN THE BERRY CASE, THIS OFFICE MUST DECLINE TO FOLLOW THE RULING IN THE WOMER CASE IN DETERMINING THE VALIDITY OF CLAIMS OR PAYMENTS IN SIMILAR CASES. IN THAT CONNECTION IT MAY BE OBSERVED THAT EVEN WERE THE RULING IN THE WOMER CASE TO BE CONSIDERED AS CONTROLLING ON THIS OFFICE, ITS FIELD OF APPLICATION APPARENTLY WOULD BE EXTREMELY NARROW SINCE THE COURT SEEMS TO HAVE LIMITED ITS FINDINGS TO A CASE WHERE THE CLAIMANT, WHO ACTUALLY WAS PHYSICALLY UNABLE TO PERFORM ANY ACTIVE DUTY WHATEVER DURING THE PERIOD BETWEEN DATE OF RELEASE FROM ACTIVE DUTY AND EFFECTIVE DATE OF RETIREMENT, HAS SUED IN THE ALTERNATIVE FOR EITHER ACTIVE-DUTY PAY AND ALLOWANCES OR RETIRED PAY. WHILE AS NOTED ABOVE, THE DECISION REACHED IN THE WOMER CASE TURNED ON THE COURT'S INTERPRETATION OF SECTION 1455, REVISED STATUTES, WHICH APPLIES ONLY TO THE NAVY, WHAT IS SAID HEREIN APPLIES EQUALLY TO THE ARMY SINCE ITS LAWS REGARDING RETIREMENT, INSOFAR AS HERE PERTINENT, ARE ALMOST IDENTICAL TO THOSE OF THE NAVY. SEE SECTION 1251, REVISED STATUTES, 10 U.S.C. 933; SECTION 1252, REVISED STATUTES, 10 U.S.C. 934; AND, MORE PARTICULARLY, SECTION 1253, REVISED STATUTES, 10 U.S.C. 966, AS FOLLOWS:

EXCEPT IN CASES WHERE AN OFFICER MAY BE RETIRED BY THE PRESIDENT UPON HIS OWN APPLICATION, OR BY REASON OF HIS HAVING SERVED FORTY-FIVE YEARS, OR OF HIS BEING SIXTY-TWO YEARS OLD, NO OFFICER SHALL BE RETIRED FROM ACTIVE SERVICE, NOR SHALL AN OFFICER, IN ANY CASE, BE WHOLLY RETIRED FROM THE SERVICE WITHOUT A FULL AND FAIR HEARING BEFORE AN ARMY RETIRING BOARD, IF, UPON DUE SUMMONS, HE DEMANDS IT.

WHILE SECTIONS 1251, 1252, 1253, AND 1454 OF THE REVISED STATUTES HAVE NOW BEEN REPEALED BY SECTION 531 (B) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 838, SUCH FACT IS IMMATERIAL INSOFAR AS THE QUESTION HERE CONSIDERED IS CONCERNED. SEE DECISION OF MARCH 22, 1950, 29 COMP. GEN. 382.

AS STATED IN THE DECISION OF OCTOBER 8, 1947, 27 COMP. GEN. 186, SUPRA, THERE IS NOTHING IN SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 WHICH WOULD INDICATE A LEGISLATIVE INTENT THAT THE DETERMINATIONS OF THE REVIEW BOARDS PROVIDED FOR THEREIN SHOULD BE GIVEN ANY RETROACTIVE APPLICATION. ON THE CONTRARY, THE FACT THAT A PERSON ENTITLED TO THE BENEFITS OF SUCH SECTION IS GIVEN A PERIOD OF 15 YEARS TO AVAIL HIMSELF OF THE RIGHTS TO REQUEST A REVIEW THEREUNDER STRONGLY MILITATES AGAINST ANY CONCLUSION THAT THERE WAS ANY SUCH LEGISLATIVE INTENT. AS A MATTER OF FACT, THE CONGRESS, OVER THE YEARS, IN ENACTING STATUTES RELATING TO ANALOGOUS MATTERS, CONSISTENTLY HAS DENIED THE RIGHT TO THE ACCRUAL OF BACK PAY OR ALLOWANCES AS AN INCIDENT THEREOF. SEE, FOR EXAMPLE, THE ACTS OF MARCH 16, 1926, 44 STAT. 208, AND JANUARY 19, 1929, 45 STAT. 1084, RELATING TO PERSONNEL DISCHARGED BECAUSE OF MISREPRESENTATION OF AGE; SECTION 2 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1270, RELATING TO SERVICE PERSONNEL WHO, SUBSEQUENT TO HAVING A CHARGE OF DESERTION ENTERED ON THEIR RECORDS, SERVED HONORABLY DURING WORLD WAR I; AND THE LAST PROVISO OF SECTION 2 OF THE ACT OF JUNE 30, 1941, AS AMENDED, POST, RELATING TO ENLISTED MEN OF THE REGULAR ARMY AND PHILIPPINE SCOUTS WHO, HAVING SERVED FOR TWENTY YEARS OR MORE, WERE HONORABLY DISCHARGED THEREFROM BY REASON OF BECOMING PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY. ALSO, AN EXAMINATION OF A NUMBER OF PRIVATE RELIEF ACTS RELATING TO SERVICE PERSONNEL, WHICH WERE ENACTED SHORTLY AFTER WORLD WAR I, INDICATES THAT SLIGHTLY MORE THAN 75 PERCENT OF THEM CARRIED A SPECIFIC PROHIBITION AGAINST THE ACCRUAL OF BACK PAY OR ALLOWANCES. (OF 98 SUCH ACTS EXAMINED, 75 PROHIBITED THE ACCRUAL OF BACK PAY OR ALLOWANCES.) ALSO, OF FIVE SUCH BILLS WHICH WERE ENACTED AT THE SECOND SESSION OF THE SEVENTY-NINTH CONGRESS 3, OR 60 PERCENT, EXPRESSLY PROVIDED THAT NO BACK PAY OR ALLOWANCES SHOULD ACCRUE AS A RESULT THEREOF. SEE PRIVATE LAW 463, APPROVED APRIL 20, 1946, 60 STAT. 1144; PRIVATE LAW 581, APPROVED JUNE 11, 1946, 60 STAT. 1195; PRIVATE LAW 646, APPROVED JUNE 13, 1946, 61 STAT. 1222; PRIVATE LAW 677, APPROVED JUNE 21, 1946, 61 STAT. 1235, AND PRIVATE LAW 701, APPROVED JUNE 25, 1946, 60 STAT. 1244. THUS IT APPEARS THAT THE POLICY OF THE CONGRESS IN CONNECTION WITH THIS TYPE OF LEGISLATION, GENERALLY, HAS BEEN TO DENY ANY RIGHT TO BACK PAY OR ALLOWANCES.

IN VIEW OF TH FOREGOING, YOU ARE ADVISED THAT ON THE BASIS OF THE ACTS STATED IN YOUR LETTER IT MUST BE CONCLUDED THAT LIEUTENANT BROWN IS ENTITLED TO RETIREMENT PAY FROM AND AFTER JANUARY 1, 1950, BUT THAT HE IS OT ENTITLED TO SUCH PAY FOR ANY PERIOD PRIOR TO THAT DATE. AND IN ANSWER O YOUR QUESTION AS TO WHETHER HE WOULD HAVE A RIGHT OF ELECTION--- WITH RESPECT TO THE METHOD OF COMPUTATION OF RETIRED PAY--- AS PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, YOU RE ADVISED THAT SUCH SECTION WOULD HAVE NO APPLICATION IN HIS CASE SINCE, Y ITS TERMS, IT IS APPLICABLE ONLY TO MEMBERS AND FORMER MEMBERS RETIRED PRIOR TO OCTOBER 12, 1949.

YOUR NEXT QUESTION RELATES TO THE CASE OF LIEUTENANT COLONEL JOSEPH D. MONK, O-922814, ARMY OF THE UNITED STATES, WHO WAS RELIEVED ROM ACTIVE DUTY ON MARCH 2, 1946, NOT BY REASON OF PHYSICAL DISABILITY. HE WAS RECALLED TO ACTIVE DUTY ON JUNE 30, 1947, FOR MEDICAL OBSERVATION AND APPEARED BEFORE AN ARMY RETIRING BOARD ON OCTOBER 17, 1947. THE RETIRING BOARD FOUND THAT HIS CONDITION COULD BE REMEDIED BY SURGERY AND THAT HE WAS NOT INCAPACITATED FOR ACTIVE SERVICE. THOSE FINDINGS WERE APPROVED BY THE THEN SECRETARY OF WAR AND ON NOVEMBER 12, 1947, HE AGAIN WWS RELEASED FROM ACTIVE DUTY. ON OCTOBER 21, 1949, HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS WHICH BOARD DETERMINED THAT HE WAS PHYSICALLY DISABLED AS OF MARCH 2, 1946, THE DATE OF HIS ORIGINAL RELEASE FROM ACTIVE DUTY, AND THAT SUCH DISABILITY WAS INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE. HOWEVER, HE DIED ON NOVEMBER 10, 1949, BEFORE HIS RETIREMENT WAS APPROVED BY THE PRESIDENT.

ON THE ABOVE STATEMENT OF FACTS YOU ASK FROM WHAT DATE RETIREMENT PAY MAY BE ALLOWED, IF THE PRESIDENT SHOULD NOW APPROVE THE FINDINGS OF THE PHYSICAL EVALUATION BOARD. IT IS NOT CLEAR THAT LIEUTENANT COLONEL MONK COULD BE CONSIDERED AS HAVING BEEN RELEASED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY AND THIS OFFICE IS AWARE OF NO PROVISION OF LAW UNDER WHICH A RESERVE OFFICER WHO WAS RELEASED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY MAY HAVE HIS CASE REVIEWED WITH A VIEW TO OBTAINING RETIREMENT OR RETIREMENT PAY FOR PHYSICAL DISABILITY. HENCE, IT WOULD APPEAR THAT EVEN HAD THE FINDINGS OF THE PHYSICAL EVALUATION BOARD RECEIVED PRESIDENTIAL APPROVAL PRIOR TO LIEUTENANT COLONEL MONK'S DEATH, HE WOULD NOT HAVE APPEAR TOO EVIDENT TO PERMIT OF ANY REASONABLE ARGUMENT THAT, REGARDLESS OF WHETHER OR NOT A POSTHUMOUS RETIREMENT COULD GIVE RISE TO ANY RIGHT TO RETIREMENT PAY IN ANY CASE, CERTAINLY NO RIGHT THERETO COULD ACCRUE FOR ANY PERIOD SUBSEQUENT TO THE OFFICER'S DEATH. AND, IN VIEW OF WHAT IS STATED ABOVE WITH RESPECT TO THE FIRST QUESTION, IT MUST BE CONCLUDED THAT NO RIGHT THERETO COULD EXIST FOR ANY PERIOD PRIOR TO THE DATE OF AUTHORITATIVE APPROVAL OF RETIREMENT. YOUR QUESTIONS RELATING TO THE CASE OF LIEUTENANT COLONEL MONK ARE ANSWERED ACCORDINGLY.

THE NEXT QUESTION PRESENTED IS WHETHER OR NOT REPRESENTATIVES OF THE ESTATES OF INCOMPETENT OR DECEASED RETIRED PERSONS CAN AT THIS TIME EXERCISE THE RIGHT OF ELECTION PROVIDED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. IT IS ASSUMED YOU REFER TO LEGAL REPRESENTATIVES OF SUCH ESTATES AND WHAT IS HEREINAFTER STATED WITH RESPECT TO THIS QUESTION IS BASED ON THAT ASSUMPTION.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 RELATES GENERALLY TO PERSONS THERETOFORE RETIRED FOR PHYSICAL DISABILITY WHO ARE RECEIVING OR ENTITLED TO RECEIVE RETIREMENT PAY, AND PERSONS THERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY. SUCH PERSONS ARE GRANTED THE RIGHT TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT OR TO RECEIVE RETIREMENT PAY COMPUTED UNDER ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT, 63 STAT. 829. IF THEY ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE ACT, IT IS PROVIDED THAT THE PERCENTAGE OF THEIR DISABILITY IS TO BE BASED ON THEIR DISABILITY AS OF THE TIME THEY WERE LAST RETIRED OR AS OF THE TIME THEY WERE LAST GRANTED RETIREMENT PAY, AS THE CASE MAY BE.

THE GENERAL RULE APPEARS TO BE THAT THE RIGHT TO MAKE AN ELECTION IS A PERSONAL RIGHT AND, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, A LEGAL REPRESENTATIVE OF AN ESTATE MAY NOT EXERCISE SUCH ELECTION WITHOUT THE CONSENT OF THE COURT HAVING JURISDICTION OVER SUCH ESTATE. SEE 25 .JUR., GUARDIAN AND WARD, SECTION 104. HOWEVER, WHILE THE STATUTORY PROVISION HERE IN QUESTION USES THE WORD "ELECT," IT, IN EFFECT, ACTUALLY IS MORE IN THE NATURE OF A SAVINGS PROVISION, THE PURPOSE OF WHICH IS TO GIVE TO THE INDIVIDUALS COVERED THEREBY THE BENEFIT OF THOSE PROVISIONS OF LAW UNDER WHICH THEY WOULD DRAW THE HIGHEST RETIRED PAY. COMPARE DECISION OF APRIL 13, 1950, ANSWER TO QUESTION (E), 29 COMP. GEN. 404, 407 (B-90755). HENCE, IT IS NOT SO MUCH A MATTER OF MAKING AN ELECTION AS IT IS OF COMPUTING AN INDIVIDUAL'S RETIRED PAY UNDER THE VARIOUS PROVISIONS OF LAW IN ORDER TO DETERMINE UNDER WHICH ONE HE WILL RECEIVE THE GREATEST RETIRED PAY. THUS VIEWED, THERE WOULD APPEAR TO BE NO SOUND REASON FOR REFUSING TO PERMIT THE LEGAL REPRESENTATIVE OF THE ESTATE TO MAKE THE SO-CALLED ELECTION. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE THIRD CASE SET FORTH IN YOUR LETTER IS THE CASE OF PRIVATE GEORGE W. E. SCHWARK, RA448883, WHO WAS DISCHARGED FROM THE SERVICE AT TILTON GENERAL HOSPITAL, FORT DIX, NEW JERSEY, ON FEBRUARY 15, 1945, BY REASON OF A CERTIFICATE OF DISABILITY FOR DISCHARGE FOR A DISABILITY INCURRED IN LINE OF DUTY, ALTHOUGH HE HAD COMPLETED 23 YEARS, 11 MONTHS, AND 26 DAYS' HONORABLE SERVICE. YOU STATE THAT IN MAY 1949 PRIVATE SCHWARK SUBMITTED AN APPLICATION FOR RETIREMENT WITH PAY UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, AS AMENDED BY THE ACT OF MAY 4, 1945, 59 STAT. 135. YOU STATE THAT HIS RETIREMENT WOULD APPEAR TO HAVE BEEN AUTHORIZED AT THAT TIME IN VIEW OF DECISION OF THIS OFFICE DATED MARCH 8, 1948, 27 COMP. GEN. 495 (B 68913). HOWEVER, THE SAID SECTION 2 WAS EXPRESSLY REPEALED BY SECTION 529 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 837. ACCORDINGLY, SINCE FINAL ACTION ON HIS APPLICATION FOR RETIREMENT APPARENTLY HAD NOT BEEN TAKEN PRIOR TO SUCH REPEAL, YOU REQUEST DECISION AS TO WHETHER OR NOT PRIVATE SCHWARK'S RIGHTS UNDER THE 1941 ACT, AS AMENDED, ARE SAVED TO HIM UNDER THE PROVISIONS OF SECTIONS 519 AND 520 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 834.

SECTION 2 OF THE ACT OF JUNE 30, 1941, AS AMENDED, SUPRA, PROVIDED AS FOLLOWS:

AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE PLACED ON THE RETIRED LIST: PROVIDED, THAT THIS ACT SHALL APPLY TO ALL FORMER ENLISTED MEN OF THE REGULAR ARMY AND THE PHILIPPINE SCOUTS WHO HAVE SERVED FOR TWENTY YEARS OR MORE, AND WHO WERE HONORABLY DISCHARGED THEREFROM BY REASON OF BECOMING PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY: PROVIDED FURTHER, THAT ANY FORMER ENLISTED MAN PLACED UPON THE RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF THE FOREGOING PROVISO SHALL NOT BE ENTITLED TO RECEIVE RETIREMENT PAY FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF THIS AMENDMENT.

SECTIONS 519 AND 520 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDE AS FOLLOWS:

SEC. 519. ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES OR ANY PERSON ENTITLED TO THE RIGHTS, BENEFITS, AND PRIVILEGES OF A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES, INCLUDING ANY PERSON ENTITLED TO THE BENEFITS PROVIDED IN THE ACT OF MAY 7, 1948 (62 STAT. 211), WHO ON THE DATE OF ENACTMENT OF THIS ACT, IS RECEIVING OR IS ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY PURSUANT TO ANY PROVISION OF LAW, SHALL, NOTWITHSTANDING THE PROVISIONS OF THIS ACT, BE ENTITLED TO CONTINUE TO RECEIVE OR SHALL CONTINUE HIS ENTITLEMENT TO RECEIVE THAT RETIRED OR RETIREMENT PAY WHICH SUCH MEMBER OR FORMER MEMBER IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY PRECEDING DATE OF ENACTMENT OF THIS ACT.

SEC. 520. ANY PROVISION OF LAW WHICH, ON THE DATE OF ENACTMENT OF THIS ACT, ENTITLES ANY PERSON TO BE RETIRED, TO RECEIVE PAY, RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY, OR OTHER MONETARY BENEFIT, AND WHICH IS DIRECTLY REPEALED, IMPLIEDLY REPEALED, OR AMENDED BY THE PROVISIONS OF THIS ACT, SHALL, IF THE ENTITLEMENT OF SUCH PERSON TO SUCH RETIREMENT, PAY, RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER MONETARY BENEFIT IS SAVED BY THE PROVISIONS OF THIS ACT, BE CONTINUED IN FULL FORCE AND EFFECT FOR SUCH ENTITLEMENT AND FOR SUCH A TIME AS SUCH ENTITLEMENT MAY EXIST.

IT WILL BE NOTED THAT SECTION 519 HAS APPLICATION ONLY TO ANY PERSON "WHO ON THE DATE OF ENACTMENT OF THIS ACT, IS RECEIVING OR IS ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY.' SINCE PRIVATE SCHWARK WAS NOT RETIRED ON OR BEFORE THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, HE WAS NOT RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY ON THAT DATE AND, THEREFORE, THE SAVINGS PROVISIONS IN SECTION 519 HAVE NO APPLICATION TO HIS CASE. AND, SINCE NO OTHER PROVISION IS FOUND IN SUCH ACT WHICH WOULD SAVE TO HIM ANY RIGHT TO RETIRED OR RETIREMENT PAY WHICH HE MIGHT HAVE HAD IF HE HAD BEEN RETIRED UNDER THE SAID SECTION 2 OF THE ACT OF JUNE 30, 1941, AS AMENDED, WHILE SUCH SECTION WAS IN EFFECT, SECTION 520 OF THE 1949 ACT, LIKEWISE, WOULD HAVE NO APPLICATION TO HIS CASE. ACCORDINGLY, YOUR PRIMARY QUESTION IN THE CASE OF PRIVATE SCHWARK IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER THE OTHER QUESTIONS INCIDENT TO SUCH CASE.

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